1 Year-End Update: A Look Back at 2013 and What to Expect in 2014 Presented by: Karen M. Morinelli...

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Year-End Update: A Look Back at 2013 and What to Expect in 2014

Presented by:

Karen M. MorinelliJackson Lewis P.C.

100 South Ashley DriveSuite 2200

Tampa, FL 33602(813) 512-3210

[email protected]

http://www.fpelra.org/

OverviewSupreme Court Review

Federal Administrative Agencies’ Actions in 2013

Union Membership Update

Legislation Enacted in 2013

State & Local Developments in 2013

Other Issues on the Horizon in 2014

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2013 -2014Supreme Court

Decisions

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Employment Cases on the Docket for 2014

Sandifer v. United States Steel Corp. U.S., No. 12-417 (1/27/14 ) (Justice Scalia) 9-0

FLSA

Whether an employer may avoid paying overtime to unionized employees for time spent donning and doffing certain protective gear

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Sandifer v. United States Steel Corp. U.S., No. 12-417 (1/27/14 ) (Justice Scalia) 9-0

FLSA (cont’d)

29 U.S.C. § 203(o), allowed U.S. Steel to withhold pay from workers' clothes-changing time, pursuant to a collective bargaining agreement with the United Steelworkers

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Who is a “supervisor”?Vance v. Ball State University, No. 11-556

(June 24, 2013) (J. Alito), 5-4 “[S]upervisory” authority includes the power to

make a significant change in employment status:

Hiring Firing Failing to promote Reassignment with significantly different responsibilities

Decision causing a significant change in benefits

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Who is a “supervisor”?

Tangible employment action standard

adopted

EEOC test of “significant direction over daily work” rejected

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Who is a “supervisor”? (Cont’d)Why Does It Matter? Faragher/Ellerth DefenseBest Practices

Review job descriptions of employees who assume quasi-leadership roles

Continue efforts to prevent workplace harassment through training & investigation of complaints

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Faragher/Ellerth DefenseBest Practices

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Remember that even if the alleged harasser is a co-worker (and not a supervisor), liability may be imposed on the Employer if the Employer knew or should have known about the conduct

University of Texas Southwestern Medical Ctr. v. Nassar, No. 12-484 (June 24, 2013)(J. Kennedy), 5-4

The statute’s plain language and Title VII’s structure demonstrated that retaliation claims were not subject to the “motivating factor” standard of proof

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Proof of “But For” CausationRequired for Retaliation Cases

University of Texas Southwestern Medical Ctr. v. Nassar, No. 12-484 (June 24, 2013)(J. Kennedy), 5-4

Retaliation claims must be proven according to traditional principles of but-for causation, not the lessened causation test stated for claims of discrimination

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Proof of “But For” CausationRequired for Retaliation Cases

Why Does It Matter? Heightened Proof Standard for

Plaintiffs!Best Practices

Document all ActionsInvestigate ComplaintsBe Reasonable

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Proof of “But For” CausationRequired for Retaliation Cases (Cont’d)

Effect of United States v. Windsor (DOMA case)

United States v. Windsor, No. 12-307 (June 26, 2013)

Holding: DOMA’s definition of marriage as

being a legal union between a man and a woman was unconstitutional as it denied equal protection under the Fifth Amendment

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Effect of United States v. Windsor (DOMA case) (cont’d)

Why Does It Matter?Change In Interpretation of Federal LawExamples Employers must provide employees time off to care

for their same sex spouse under the FMLA Spousal privilege when it comes to confidential

communications will now extend to same-sex marriages

Benefits, Taxes, Life/Death decisions

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Noel Canning v. NLRB – whether the Constitution only authorizes presidential appointments during intersession recess and whether the President can only use his recess appointment powers to fill a vacancy that emerged during the recess

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Schuette v. Coalition to Defend Affirmative Action – whether law prohibiting use of racial preferences in public universities, government contracting and public employment violates the Equal Protection Clause

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Employment Cases on the Docket for 2014Madigan v. Levin – whether the ADEA

provides the exclusive remedy for age bias claims filed by state or local government employees or if such claims can be brought under the Equal Protection Clause of the Constitution

DISMISSED!!! REVIEW IMPROVIDENTLY GRANTED

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Administrative Agencies

2013

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.vue

EEOC UPDATE

http://www.eeoc.gov/eeoc/plan/2012par_charts.cfm

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Total Charges 2012/2013 99,412 93,727

Race 33,512 33,068

Sex 30,356 27,687

National Origin 10,883 10,642

Religion 3,811 3,721

Color 2,662 3,146

Retaliation - All Statutes 37,836 38,539

Retaliation - Title VII only 31,208 31,478

Age 22,857 21,396

Disability 26,379 25,957

Equal Pay Act 1,082 1,019

GINA 280 333

EEOC UPDATE

2013 Claims between Oct. 1, 2012 to Sept. 30, 2013

•Charges filed:

EEOC received a total of 93,727 private sector discrimination charges

A decrease of roughly 6,000 charges over the previous three fiscal years

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FY 2012

FY 2013

Receipts 99,412 93,727

Resolutions 111,139 97,252

EEOC UPDATE

EEOC UPDATE

Charges resolved:

A total of 97,252 charges were resolved Also a decrease over the year before EEOC attributed to “the decline in staffing and resources…including the impact from furloughs.” Resolution through conciliation occurred 1,437 times.

Resolutions By TypeFY 2012

FY 2013

Settlements 9,524 8,625

8.6% 8.9%

Withdrawals w/Benefits 5,438 5,497

4.9% 5.7%

Administrative Closures 16,459 15,456

EEOC UPDATEFLORIDA CHARGES 2013

Total Charges 7,957 % of all US 8.1%

Charge Categories * Retaliation 40.7% Title VII/Retaliation 33.8% Race 33.3% Sex 28.8%* As a percentage of all state charges

EEOC UPDATEAverage time:• In FY 2012, the average time to investigate

and bring charges to resolution was 288 days• The enforcement staff reduced that timeline by

21 days in FY 2013, to 267 days

Monetary recovery: • Charging parties recovered $372.1 million, a

new record for the agency (up $6.7 million from the year prior)

Lawsuits filed: • The EEOC filed 131 “merits lawsuits,” with 89

individual suits, 21 non-systemic class suits, and 21 systemic suits

• Title VII formed the basis of the majority of the cases (78)

• Americans with Disabilities Act (51)• Age Discrimination in Employment Act (7)• Equal Pay Act (5)• Genetic Information Nondisclosure Act (3)

EEOC UPDATE

EEOC cases in 2013

The EEOC took 13 cases to trial in 2013 11 jury trials and 2 bench trials EEOC prevailed in 9 of them, resolved 1 by

consent decree during trial, and lost 1 EEOC lost one bench trial, and another case

is still pending following a bench trial

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What’s happening at the EEOC?The EEOC Strategic Enforcement Plan 2013 -

2016 Commission enforcement focus hiring pay harassment protecting immigrant, migrant and other

vulnerable workers

addressing emerging and developing issues and preserving access to the legal system

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What’s happening at the EEOC?

EEOC continues to aggressively pursue:

Pregnancy Discrimination Cases

ADA Cases

National Origin Cases

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What’s happening at the EEOC? (Cont’d.)

EEOC sued an employer for failing to hire women for operative positions (such as selector, receiving clerk, driver, yard jockey, driver trainee, forklift operator, and transportation supervisor)

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The EEOC sued a tire and muffler company for failing to hire women as Managers, Assistant Managers, Mechanics, Tire Installers, and similar jobs because of their sex

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The EEOC sued a restaurant for failing to hire people age 40 and older for “front of the house positions”

The EEOC sued a retailer, claiming that it did not hire people because of their race (African-American or black) or national origin (Hispanic or Latino) and that the employer retaliated against employees who complained about discrimination

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EEOC’s Position on Background Checks

The EEOC’s most significant 2012 guidance

was the enforcement guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964

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EEOC’s Position on Background Checks (Cont’d.)

The EEOC has filed lawsuits alleging that background checks have a discriminatory impact on minorities

EEOC v. Freeman, No. 8:09-cv-02573(RWT) (D. Md. Aug. 9, 2013)

Court found no facts to support theory of disparate impact where EEOC failed to identify the specific policy or policies causing the alleged disparate impact

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EEOC v. BMW – EEOC sued manufacturing facility in South Carolina alleging that its criminal background policy violated Title VII by disproportionately screening out African Americans from jobs (Pending)

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EEOC v. Dollar General – EEOC sued the big box store on behalf of applicant whose conviction records check report was incorrect and alleged that the use of the records check violated Title VII (Pending)

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UNIONS!!

2013Unionized Workforce GREW!!

Overall most since 2009BUT….

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UNIONS!!

Government numbers FELLBy 172,000

To 7.9 MillionLocal government most losses!!

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UNIONS!!

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UNIONS!!Public Sector – 38.7%

Local government 44.1%Teachers

PoliceFirefighters

State 33.8%Federal 31.2%

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U.S. Department of Labor

FMLA 11TH CIRCUIT UPDATE

DOL – FMLA Case UpdateEleventh Circuit FMLA Case Law Update

(2013) Tippins v. Honda Mfg. of Ala., LLC, 523

Fed. App’x 641 (11th Cir. July 15, 2013)Eleventh Circuit affirmed district court’s

holding in favor of employer that employee’s three-day absence for a dental condition did not qualify as a serious health condition involving continuing treatment

She was not incapacitated for a continuous period of more than three days

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DOL – FMLA Case UpdateGreen v. U.S. Steel Corp., 2013 U.S. App.

LEXIS 25268 (11th Cir. Dec. 19, 2013) Before employee’s termination, she had

entered into a last chance agreement with employer because of prior instances of absenteeism

The last chance agreement required her to provide a doctor’s note for any absences immediately upon returning to work

Employer terminated her after absences Plaintiff claimed were related to her FMLA serious health condition (influenza)

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DOL – FMLA Case UpdatePenaloza v. Target Corp., 2013 U.S. App. LEXIS

22172 (11th Cir. Oct. 31, 2013)Employer gave employee over 12 weeks of leave due

to her pregnancy, in accordance with the employer’s policy of providing employees who timely completed FMLA forms 16 weeks of unpaid FMLA leave (i.e., 4 weeks longer than the statutory requirement)

Employee was terminated two weeks after the 12 week leave period ended

Employee’s FMLA interference claim failed because she could not show she was denied any benefit to which she was entitled under the FMLA 46

DOL – FMLA Case UpdateGiles v. Daytona State College, Inc., 2013

U.S. App. LEXIS 21711 (11th Cir. Oct. 25, 2013)

Employee took FMLA leave to care for ailing parents

Shortly after her return to work, her employer informed her that her annual contract would not be renewed for “budgetary reasons”

She appealed the nonrenewal of her contract through the employer’s mediation process and ultimately was reinstated

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DOL – FMLA Case Update

Turner v. Fla. Prepaid College Bd., 522 Fed. App’x 829 (July 2, 2013)

Employee requested FMLA leave after she was placed on a performance improvement plan

When employee returned to work, she was terminated for her performance

Employee claimed FMLA interference and retaliation

Eleventh Circuit held that interference and retaliation claims survived summary judgment

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DOL – FMLA Case UpdateGilliard v. Ga. Dept. of Corrections, 500 Fed. App’x

860 (11th Cir. Dec. 7, 2012) Eleventh Circuit affirmed grant of summary judgment

in favor of defendants on employee’s FMLA interference and retaliation claim

Any issue of fact was not material because employee did not present more than a scintilla of evidence showing that her 12 week FMLA leave period was reduced by three days

Employee did not establish that employer’s non-retaliatory reasons for her proposed five-percent salary reduction and termination were pretexts for retaliation

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DOL – FMLA Case UpdateDavis v. Postmaster General, 2013 U.S. App.

LEXIS 25257 (11th Cir. Dec. 19, 2013)A postal worker terminated after he failed to return

from a long absence exceeding 12 weeks and failed to respond to multiple disciplinary notices

He did not state a prima facie case for FMLA retaliation

The former employee argued that he was entitled to FMLA leave for most of the period of absence because he was caring for his sick children

Eleventh Circuit affirmed, that he failed to engage in statutorily protected conduct because his absence exceeded the 12 weeks protected by the FMLA

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DOL – FMLA Case UpdateBadger v. MCG Health, Inc., 2013 U.S. App. LEXIS 21395 (11th Cir. Oct. 22, 2013) While employee was out on FMLA leave, her

supervisor discovered that employee failed to: create files for important documents, maintain a required competency manual, appropriately discipline employees, minimize employee overtime, and…. maintain employee FMLA paperwork

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Other Agency UpdatesDOL issued

new hiring standards

final rule guaranteeing minimum wage and overtime benefits to domestic care workers and

remains aggressive vis a vis audits and seeking civil monetary penalties

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State Update

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State Update Orange County Classroom Teachers Assn. v. School Dist. of Orange Co., 40 FPER I 157 (FL PERC October 8, 2013)

• The Commission found that the District had committed an unfair labor practice

• By refusing to allow a union to utilize its e-mail system during the time that its registration had lapsed

• By erroneously informing a newspaper, bargaining unit members, and the Union president that the Union could not serve as bargaining agent while its registration was in a lapsed state

State Update Hollywood Fire Fighters, Local 1375, IAFF, INC., vs City of Hollywood, No. 4D12-2861 4th DCA Jan. 8, 2014

Issue: Public Employees right to collectively bargain / interrelated constitutional right of a bargaining unit to be free from impairment of contracts

PERC’s interpretation of Fla Stat 447.095(1) – “Financial Urgency” violates these constitutional rights

HELD: Disagrees with PERC in Headley v. City of Miami, 118 So. 3d 885 (Fla. 1st DCA 2013)

Certifies Conflict with the 1st DCA & Directs PERC to apply “Chiles”

Legislation Enacted In 2013

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Enacted Legislation

Nothing overriding passed on federal level

Several proposed bills at each end of political

spectrum but few in the middle

Significant STATE AND LOCAL LAWS have passed

“Ban the Box” Laws & Increases to Minimum Wage

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Ban the BoxMinnesota passes “ban the box” law changing how

employers consider job applicants’ criminal history (effective 1/1/14)

Rhode Island passed similar legislation that applies to public and private employers

Seattle law does moreCurrently at least 8 states or localities have broad laws

limiting an employer’s right to inquire regarding criminal convictions – most just deal with timing issues

California, Colorado, Connecticut, Illinois, Maryland and New Mexico have all adopted statewide regulations to ban the box for public sector employees

Other localities like NYC, Chicago and Baltimore have followed suit in whole or in part in public sector and/or for contractors

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Minimum Wage

Florida’s minimum wage $7.93 changed January 1, 2014

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No Texting!

Florida has joined 41 other states by passing a law prohibiting, as a secondary offense, manual texting, e-mailing and instant messaging on a wireless device while driving

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Potential Federal Legislation In 2014

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Potential Federal Litigation in 2014

Employment Non-Discrimination Act (“ENDA”) would prohibit discrimination on the basis of sexual orientation or gender identity

Legislation most likely to pass

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Working Families Flexibility Act of 2013 would amend the FLSA to allow private employers to provide compensatory time off to employees in lieu of overtime under certain conditions

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Potential Federal Litigation in 2014`

Family and Medical Leave Inclusion Act would allow employees to take unpaid leave to care for a same-sex spouse or partner, parent-in-law, adult child, sibling, grandchild or grandparent

Family and Medical Leave Enhancement Act would expand the FMLA to cover smaller employers, allow workers to take unpaid FMLA for “parental involvement and family wellness”

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Paycheck Fairness Act would shrink the pay gap between men and women

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And in 2015

New rule requires home care employers to pay minimum wage, overtime to their direct care employees

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Other Issues on the Horizon in 2014Potential state or local legislation:

BullyingPaid sick leaveBan the box Limiting credit checks

Court actions:More wage and hour class actionsPregnancy discrimination

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Federal Administrative Agencies:Continued AggressivenessContinued Rulemaking

Affordable Care Act - Impact/Implementation

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QUESTIONS?

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THE MATERIAL CONTAINED IN THIS PRESENTATION WAS PREPARED BY THE LAW FIRM OF JACKSON LEWIS P.C. FOR THE ATTENDEES’ OWN REFERENCE IN

CONNECTION WITH THIS SEMINAR. SINCE THE MATERIAL AND RELATED DISCUSSIONS ARE INFORMATIONAL AND EDUCATIONAL IN NATURE AND REPRESENT THE SPEAKER’S OWN VIEWS, ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE MATERIALS OR RELATED DISCUSSIONS TO BE LEGAL OR OTHER ADVICE. PROFESSIONAL ADVICE SHOULD BE

OBTAINED BEFORE ATTEMPTING TO ADDRESS ANY LEGAL SITUATION OR PROBLEM.

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THANK YOU

Presented by:

Karen M. MorinelliJackson Lewis P.C.

100 South Ashley DriveSuite 2200

Tampa, FL 33602(813) 512-3210

[email protected]

1 Year-End Update: A Look Back at 2013 and What to Expect in 2014 Presented by: Karen M. Morinelli...

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